Conseil scolaire francophone de la Colombie-Britannique v British Columbia
Background
This appeal to the Supreme Court of Canada (the Court) concerned the scope of the right to minority language education under section 23 of the Canadian Charter of Rights and Freedoms (the Charter). The appellants—the Conseil scolaire francophone de la Colombie-Britannique (the Conseil Scolaire), the Fédération des parents francophones de la Colombie‑Britannique and three parents who are rights holders under section 23 of the Charter—alleged that several aspects of the funding of the education system in British Columbia penalized the official language minority community and infringed on its section 23 rights.
The appellants sought damages, blaming the respondents—Her Majesty The Queen in Right of the Province of British Columbia and Minister of Education of British Columbia (the Province)—of systemic failures, for the lack of an annual grant for building maintenance, the formula used to set priorities for capital projects, a lack of funding for school transportation and a lack of space for cultural activities. The appellants also requested new schools or improvements to existing schools in 17 communities.
The trial judge ruled that several aspects of the funding of the minority language education system unjustifiably breached section 23 of the Charter. First, the judge ruled that the transportation system had been chronically underfunded and awarded $6 million in damages for this funding breach. Second, the judge concluded that the Sechelt, Penticton, Abbotsford and Vancouver West communities were entitled to homogeneous minority language schools. Third, the judge found that the Province’s policy with respect to the acquisition of new minority schools infringed section 23 of the Charter, and she ordered the creation of a new funding envelope for the Conseil Scolaire for this purpose. However, the judge also found that several infringements were justified under section 1 of the Charter. This was the first time that an infringement under section 23 of the Charter was found to be justified under section 1.
The appellants appealed the trial judge’s decision, arguing that she had made several errors of law in analyzing the alleged infringements of section 23, in reviewing the justification of the infringements under section 1 and in granting the remedies being sought. The Court of Appeal dismissed the appeal but allowed the Province’s cross appeal and set aside the award of damages for inadequate funding of school transportation.
Decision
Before beginning its analysis of the issues in this case, the Supreme Court of Canada reviewed the historical and social relevance of section 23 and highlighted its threefold objective as being at once preventive, remedial and unifying. Section 23 is intended to prevent the erosion of official language minority communities, to remedy past injustices and promote the development of those communities, and to allow Citizens better mobility by enabling them to move anywhere in Canada without fearing that they will have to abandon their language and culture. The Court also emphasized that this case should not be treated as one of a kind and that it is necessary to ensure that future claimants are not forced to undertake “interminable” judicial proceedings in order to have their rights protected, recognized and enforced.
The Court continued its analysis by examining the following issues:
- What is the approach to take in order to situate a given number of students on the sliding scale?
- Does the test used to assess the quality of instruction provided to official language minorities vary with the number of minority language students?
- Does compelling a school board to prioritize its capital projects infringe section 23?
- How is an infringement of section 23 assessed under section 1 of the Charter?
- Does the limited government immunity from damages awards apply to decisions made in accordance with government policies that are found to be contrary to section 23?
The Court addressed the fact that the implementation of the rights of the official language minority community under section 23 of the Charter depends on there being a sufficient number of children. However, the section does not specify what that number is.
In previous jurisprudence, the Court ruled that section 23 must be understood as encompassing a “sliding scale” of requirement. By virtue of the sliding scale concept, section 23 provides a basis for a range of educational services. The low end of the scale corresponds to the right only to have instruction in the minority language. In the middle of the scale, control may extend to one or more classrooms in a majority language school, to the hiring of teaching staff or to certain expenditures. The high end of the scale corresponds to management and control of separate, homogeneous minority language educational facilities. In other words, the higher the number of right holders on the scale, the more control they have over their education and institutions.
1) What is the approach to take in order to situate a given number of students on the sliding scale?
The Court considered this appeal as an opportunity to set out a three-step approach to determine the level of services guaranteed to rights holders on the basis of a given number of students.
Step 1: Establish the number of students in question
The Court noted that section 23 of the Charter has an internal limit: the “numbers warrant” criterion. The burden of proof regarding the number of students who could eventually avail themselves of a minority language program or facility is on the claimants from the official language minority community. They have to provide evidence for this number based on long-term projections (i.e., future demand for the program or facility). An approach based on short-term projections would be contrary to both section 23 and established case law and would place on the minority the burden of asking the government for enhancements to the services provided to it each time the number of students reached a new level on the sliding scale and, if necessary, going to court to assert its rights. An approach focused on enrolment over the long term might limit the frequency with which such steps need to be taken.
Step 2: Take a comparative approach to determine whether the school contemplated by the official language minority community is appropriate from the standpoint of pedagogy and cost
The Court must consider two factors to determine whether the program proposed by the official language minority community is appropriate: pedagogy and costs.
According to the Court, pedagogy corresponds to pedagogical viability of the project proposed by the official language minority community. The question is whether, in light of the estimated number of students in question, the level of services proposed by the official language minority community will make it possible to meet all curriculum requirements (i.e., those related to the knowledge and skills the students must acquire while in school).
The cost factor takes into account the fact that public funds are limited and that there are various financial considerations associated with the cost of building a new school or launching a program and with the related operating costs.
The Court noted that it is best to take a comparative approach because it is often “experience and practice that determine whether a given number of students will suffice for a school to function efficiently in light of the province’s curriculum” (para. 63). The existence of majority language schools of a similar size is the best indicator to determine whether a given number of students is sufficient for the achievement of the curriculum’s objectives. The Court added that this comparative analysis must be conducted province-wide, although it would be possible to exclude individual exceptional cases from the analysis.
Using this comparative approach, the Court noted that having a majority language school elsewhere in the province with a limited number of students means that the province finds that this school satisfies both the pedagogical needs of its students and that it is justified on the basis of financial considerations. The Court explained that it can therefore be logically presumed from this fact that it will also be appropriate, from the point of view of pedagogy and cost, to create a comparably sized school for the official language minority community. The province can, however, refute this presumption by showing that the schools used as comparators are not appropriate from the standpoint of pedagogy or cost.
Step 3: Determine the level of services that must be provided
To determine the level of services to be provided to the official language minority community, the Court must base itself on its findings in the previous step. If the presumption that a homogeneous minority language school is appropriate has not been refuted, the number of students is at the high end of the sliding scale and the official language minority community is therefore entitled to the homogeneous school. If, on the other hand, the Court has found in the second step that the number of minority language students is not comparable, or if the presumption has been refuted by the province, then the number falls below the high end and a homogeneous school is therefore not required. In such circumstances, it is possible that minority community still has a right to a range of educational services.
The Court noted that school boards of official language minorities have particular expertise regarding educational services that might be provided to the official language minority. It explained that this is the reason the province or territory and (in the event of litigation) the courts must give deference to the school board’s expertise and proposals with respect to the appropriate level of service.
Application of the analysis in the present case
The Court applied the three‑step approach to the appellants’ claims regarding the various minority communities and found that they are entitled to eight new homogeneous schools that were denied by the lower courts.
2) Does the test used to assess the quality of instruction provided to official language minorities vary with the number of minority students?
The Court noted that section 23 of the Charter gives an official language minority community the right to an educational experience that is equivalent in quality to the experience provided to the majority language community. The Court stated that the focus must be on substantive equivalence, not on formal equivalence. In other words, to ensure equality, it is not enough that public spending per student be the same for the official language minority and majority communities. Rather, the overall educational experience provided to the minority community must be of substantively similar quality to that of the experience provided to the majority community. The Court held that substantive equivalence must be assessed by asking “whether reasonable parents would be deterred from sending their children to a school of the official language minority because it is meaningfully inferior to an available majority language school” (para. 105). Parents must be aware of the inherent characteristics of small schools. Multiple factors may be considered, including the “quality of instruction, educational outcomes, quality of facilities, extracurricular activities, travel times, competence of the teachers and cultural opportunities offered to the official language minority” (para. 112), and the school must be compared as a whole.
In this case, the lower courts used a proportionality test (developed by the trial judge) to make comparisons when the number of students fell below the high end of the sliding scale. The lower courts held that substantive equivalence applied only when the number is at the high end of the scale. The Court rejected this approach, as it would have the effect of endorsing “an educational experience of inferior quality for official language minorities” (para. 118). Rather, it upheld the application of the substantive equality criterion, regardless of where the number of students falls on the sliding scale. The Court is of the opinion that the official language minority community is entitled to an educational experience that is substantively equivalent to the experience provided to the majority community, regardless of the size of the school or program in question.
Application of substantive equality in the present case
The Court focused on three specific schools located in the communities of Nelson, Chilliwack and Mission. With regard to the school in Nelson, the Court found that the educational experience of the minority language students was equivalent to the experience provided to the majority language students. With regard to the school in Chilliwack, the Court found that the educational experience of the minority language students was substantively inferior to that provided in the majority schools, which is an infringement of section 23 of the Charter. With regard to the school in Mission, the Court found that not enough evidence had been presented to be able to conduct an analysis and concluded that the question must be remanded to tribunal to be reassessed.
3) Does compelling a school board to prioritize its capital projects infringe on section 23?
The Court found that, when several small schools must be built, it is reasonable for the Province to require the Conseil Scolaire to prioritize its capital projects, and that this requirement actually furthers the exercise of its right of management under section 23 of the Charter. The Court specified, however, that infringements of section 23 must be remedied in a timely fashion by the Province: for example, by building a homogeneous school.
4) How is an infringement of section 23 assessed under section 1 of the Charter?
The Court held that it is possible to justify an infringement of section 23 under section 1 of the Charter. Where an infringement of section 23 is established, a court must therefore take the approach established in R. v. Oakes, [1986] 1 S.C.R. 103 for determining whether the infringement of a Charter right can be justified in a free and democratic society. The Court has never yet determined that an infringement of section 23 was justified under section 1.
The lower courts had ruled that “the fair and rational allocation of public funds is a pressing and substantial objective that can justify an infringement of section 23 in accordance with the Oakes test” (para. 144). The courts also held that assimilation is not a significant deleterious effect of the infringement measure, because minority language schools can only slow the inevitable process of assimilation.
The Court opined that several factors weigh in favour of applying a particularly stringent standard for justifying an infringement of section 23 of the Charter. It stated that section 23 has an internal limit—the numbers warrant criterion—and also imposes positive obligations on the provincial and territorial governments, which must provide funding for minority language instruction where the number of children so warrants. Taking a flexible approach to the justification set out in section 1 could jeopardize section 23’s remedial purpose. The Court was therefore of the view that an infringement of section 23 of the Charter is particularly difficult to justify.
The Court concluded that the lower courts erred in accepting the Province’s argument that the fair and rational allocation of limited public funds was a valid pressing and substantial objective. It stated that “the fair and rational allocation of limited public funds represents the daily business of government” (para. 153) and that accepting the Province’s argument would make it “disconcertingly easy” for provinces and territories to infringe on the fundamental rights of citizens. The Court therefore found that this was not a pressing and substantial objective and did not need to go any further in the Oakes test to conclude that the infringements of section 23 were not justified. The Court held that it is necessary to be extremely careful in reviewing any infringement of section 23 and to “take assimilation fully into account as a deleterious effect when the right under that section is infringed” (para. 156).
Application of section 1 in the present case
The Court concluded that the Province infringed on the appellants’ rights in the following communities: Abbotsford, Burnaby, Chilliwack, Northeast Vancouver, East Victoria, West Victoria, North Victoria and Whistler. The Court also noted that the trial judge had found that there were infringements in the communities of Pemberton and Victoria but that these infringements were justified under section 1 of the Charter. Further to its analysis of section 1 regarding the lack of a valid objective, the Court concluded that these infringements of rights holders’ Charter rights under section 23 cannot be justified in a free and democratic society.
5) Does the limited government immunity from damages awards apply to decisions made in accordance with government policies that are found to be contrary to section 23?
The Court stated that although governments have limited immunity from damages awards in relation to infringements of the Charter, the issue in this case is whether this limited immunity applies to decisions made in accordance with a government policy that is found to be contrary to section 23 of the Charter. The Court of Appeal held that concerns for good governance justify immunity for decisions made in accordance with any type of government policy that is subsequently found to constitute an infringement, citing Vancouver (City) v Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, and Mackin v New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405. However, the Supreme Court disagreed and found that “the possibility of damages being awarded in respect of Charter-infringing government policies helps ensure that government actions are respectful of fundamental rights” (para. 171).